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76 Calif. L. Rev. 965 (1988)
The Paradox of Statutes of Limitations in Toxic Substances Litigation

handle is hein.journals/calr76 and id is 979 raw text is: California Law Review VOL. 76 OCTOBER 1988 No. 5 Copyright © 1988 by California Law Review, Inc. The Paradox of Statutes of Limitations in Toxic Substances Litigation Michael D. Greent This Article evaluates the use of statutes of limitations in toxic sub- stances litigation. Professor Green begins by analyzing the function of stat- utes of limitations in traditional tort cases. He concludes that in these traditional settings statutes of limitations may improve the accuracy of fact-finding and provide some measure of repose for defendants. He dem- onstrates, however, that toxic substances cases differ markedly from tradi- tional tort claims: The causes of the injury are more difficult to trace; the period from exposure to cognizable harm is much longer and varies signifi- cantly; the harms are more susceptible to misdiagnosis; and the number of victims is likely to be much greater. Because of these differences, he con- tends, statutes of limitations have precisely the opposite of their intended effect in toxic substances litigation. Rather than improving the accuracy of fact-finding, they require that claims be resolved before adequate scientific evidence of causation has been developed. These statutes also require plaintiffs to bring suit prematurely-before they have suffered any signifi- cant loss and at a time when assessing the future course of their condition is impossible. Finally, he argues, that providing a significant measure of repose through statutes of limitations to defendants is neither possible, because of the lengthy latency periods, nor particularly desired by those defendants. Professor Green recommends that statutes of limitations be abolished entirely in toxic tort litigation, thereby leaving the decision when to file a suit to the discretion of the plaintiff. He concludes that abolishing statutes t Professor of Law, University of Iowa. B.S. 1972, Tufts University; J.D. 1975 University of Pennsylvania. This Article has benefited from the comments of participants in a Comell Law School Faculty Seminar and a University of Iowa College of Law Faculty Seminar. I am grateful for the valuable comments of Ken Abraham, David Baldus, Bonnie Brier, Martha Chamallas, and Bill Felstiner on earlier drafts of this Article. I am also indebted to Brad Kragel and Aida Saracevic for their superb research assistance in the preparation of this Article.

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